RACMP Enterprises, Inc. - Page 54




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          with developers to construct a finished structure or product.               
          Petitioner purchases concrete, sand, gravel, re-bar, anchor bolts           
          and rods, expansion anchors, holddowns, straps, and piping for              
          sewer and drainage and uses those materials to produce sidewalks,           
          driveways, and foundations.  The developer, who does not have any           
          contractual relationship with the suppliers of concrete, sand,              
          gravel, and other materials, must accept the finished product               
          before petitioner is entitled to payment.  The materials                    
          represent approximately two-thirds of the cost of the finished              
          product and the labor approximately one-third.  Petitioner is               
          financially responsible for any deficiencies in the contract                
          specifications up until the acceptance of the finished product by           
          the developer.  At any particular time, petitioner has on hand              
          sand, gravel, re-bar, anchor bolts and rods, expansion anchors,             
          holddowns, straps, and piping for sewer and drainage stored at              
          various sites, including its place of business.                             
               When all of these facts are taken into consideration, it               
          becomes evident that petitioner is not solely engaged in                    
          providing labor and that the materials are not merely consumed in           
          providing a service.  If, however, petitioner had contracted to             
          set forms, pour and finish concrete for a developer who purchased           
          the sand, gravel, concrete, re-bar, anchor bolts and rods,                  
          expansion anchors, holddowns, straps, and piping for sewer and              
          drainage, the majority’s finding or holding would then ring                 
          truer.  Instead, the facts in this case are difficult to                    




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Last modified: May 25, 2011